implicated by the removal of the alleged misstatement. While this might be an appropriate standard for materiality in the context of a single misstatement or omission, it is not appropriate where there are numerous misstatements and omissions and these falsehoods, when aggregated, undermine the issuing court's necessity determination.
The rule proposed by the government would permit law enforcement officers to escape the requirements of § 2518(1)(c) because the government can always identify some detail of the conspiracy, no matter how trivial, that could not have been discovered through traditional law enforcement techniques.
On the government's view, there would be situations where the affidavit would not be found to satisfy the necessity requirement when all of the misstatements and omissions are corrected, but the reviewing court could not make this determination because no single misstatement or omission is material in the sense that it alone dooms the affidavit. Not only is this an odd definition of "material," but it thwarts the purposes of § 2518(1)(c) if construed in this manner. In any event, there are two material omissions which, considered independently, require suppression of the evidence derived from the illegal wiretap. See parts IV-C and IV-E.
When viewed in the context of the other misstatements and omissions, the court finds that the omission of the identities of the seven participants in both Ailemen conspiracies was material to the issuing court's necessity determination. It is almost certain that the issuing court did not consider the necessity requirement to be met simply because the government lacked sufficient evidence to convict beyond a reasonable doubt. Instead, the affidavit gave the appearance that the wiretap was necessary to discern the identities and roles of Ailemen's co-conspirators and the scope and method of his organization. Aff at 57 and 62. If the government had revealed to the issuing judge that it had discovered the identities of seven suspected participants in Ailemen's organization through traditional investigative methods, he would have recognized that the government could learn a great deal about the roles of these participants, as well as the identities of others, without resort to a wiretap. See part V. In the view of the undersigned, the issuing judge would not have authorized the wiretap if he knew how quickly the government had been able to identify the suspected participants in Ailemen's organization through traditional investigative means.
Furthermore, in light of the government's statement that "normal investigative procedures have not and likely cannot succeed in establishing the identities of the co-conspirators and aiders and abetters of Pius Ailemen (other than as set forth herein)," Aff at 65, and at its overall attempt to portray the Ailemen organization as impervious to traditional investigative techniques, the court finds that the omissions were made with reckless disregard for the misleading effect it would have on the issuing judge.
The affidavit was also drafted to mislead the issuing judge about the ability of agent Estelle to penetrate the organization and learn more about its scope and sources of supply. In the section of the affidavit devoted to "Use of Informants and Undercover Government Agents," agent Silano stressed the need for the wiretap to identify Ailemen's suppliers and his distribution network. Aff at 59. The section begins with a warning about the ineffectiveness of undercover agents in situations in which the subject lacks confidence in them; its bulk is devoted to "instances where the undercover agent was not brought into the complete confidence of the subjects." The affidavit thus created the misleading impression that Ailemen was distrustful and elusive with the undercover agent and that the undercover operation was unlikely to develop into a fruitful source of information.
In reality, undercover agent Estelle had gained the confidence of Ailemen in a remarkably short period of time. By mid-February 1993, after spending less than two months of continuous contact with Ailemen,
agent Estelle was: permitted to work directly with Ailemen in a couriering operation to Chicago; repeatedly offered large amounts of heroin; and offered the possibility of traveling to New York with Ailemen to buy narcotics from Ailemen's people there. Ailemen even met directly with Estelle on two occasions and he explained to Estelle the reasons why Estelle dispelled Ailemen's concerns that his new buyer was a cop.
The necessity section of the affidavit omits these important details.
It is true, as the government contends, that the factual section of the affidavit, although omitting the other details, mentioned the possibility of the New York meeting and the trip by Estelle to Chicago. Aff at 36 and 39-45. But the possibility of the New York meeting, was buried in a mass of detail about the discussions between Quarshie and Estelle that consumed nearly thirty-five pages of the sixty-five page affidavit. Aff at 10-45. Placement of this important information is notable as much for what it concealed, as for what it revealed. In fact, the government took Ailemen's suggestion of a trip to New York quite seriously and set up a team of agents prepared to pose as Colombians to meet Ailemen and his people in New York. TR 4-919:12-19 (testimony of agent Silano). Agent Silano's explanation for not going forward with this operation is unilluminating ("because we did not want to meet in New York"). TR 4-919:20-22. The government did not share with the issuing judge the seriousness of the prospects for the New York meeting and its promise for advancing the investigation. Quite the opposite, the government gave a gloomy portrayal in the necessity section of agent Estelle's undercover investigation, see Aff at 58-59, thereby cloaking the real promise of Estelle's investigation from the issuing judge. As the Ninth Circuit put it in another case, the portion of the affidavit devoted to "Exhaustion of Alternative Investigative Techniques" was "artfully drafted with the intent to mislead the [issuing] judge." United States v Simpson, 813 F.2d 1462, 1471 (9th Cir 1987) (quoting district court).
The government argues that the omitted details of Estelle's involvement in the investigation of Ailemen were immaterial to the issuing judge's finding of necessity. Even if the government had included the alleged omissions, the government contends that the wiretap still would have been necessary to identify all of the defendant's co-conspirators, the entire scope of the conspiracy and all methods of transporting drugs. Obj at 91. Specifically, the government contends that the magistrate engaged in impermissible second-guessing of investigative activities when he considered the possibility of Estelle traveling with Ailemen to New York because Estelle believed that the trip would not be fruitful and might be dangerous based on his years of investigative experience. Obj at 71 and 74.
The government's criticisms of the magistrate are misplaced. In United States v Spagnuolo, 549 F.2d 705 (9th Cir 1977), the Ninth Circuit discussed the role that an agent's law enforcement experience should play in his obligation to reveal facts pertaining to the exhaustion of traditional investigative tactics to the issuing judge. The Ninth Circuit declared that the affidavit's description of the investigative tactics that have been tried must be "sufficient to enable the district judge to determine, independently of an agent's assertions with respect to his or her other agents' experiences, that ordinary investigative techniques very likely will not succeed or that their use will imperil life or in some other specific way be too dangerous." Id at 710 (emphasis added). The court went on:
To delay the wiretap order while ordinary techniques are employed or to undertake to educate a district judge to enable him to appreciate their level of experience no doubt appears to such agents as a waste of time and resources. Their perception may be accurate, but Congress has deprived it of decisive influence. The particularized showing here described is necessary. The district judge, not the agents, must determine whether the command of Congress has been obeyed.
Id at 710-11. The government cannot circumvent this requirement by citing to the post-hoc rationalization of officer Estelle that he thought the trip to New York would be futile or dangerous. If at the time the affidavit was submitted to the issuing judge, Estelle thought a trip to New York would not pan out or be too dangerous, the government's obligation was to disclose Estelle's views and his reasons to the issuing judge. Surely, the government cannot undo its failure to have made this submission by now using Estelle to second guess the magistrate.
For instance, the issuing judge should have been informed in the necessity section of the affidavit, or clearly in the fact section, that Ailemen suggested the possibility of a rendezvous in New York with his narcotics suppliers. Such further use of the confidential informant might very well have led to penetration of Ailemen's entire enterprise, including the source of Ailemen's supply and the identities other major co-conspirators. See part V. It was reckless for the government to portray the undercover efforts of Estelle as a failure and to conceal the leads it chose not to pursue.
The government discovered two other unpursued leads that were not reported to the issuing judge. On December 11, 1992, Washington, the confidential informant who was never named in the affidavit, disclosed to officer Gutierrez that Ailemen always paid his $ 1,400 monthly rent with money orders. On February 26, 1993, investigative agents followed Ailemen to "a money laundering, excuse me, scratch that, a check cashing establishment, alleged money laundering place." Grand Jury Testimony of Agent Silano, Ex 17 at 31. Nowhere in the affidavit does the government disclose to the issuing judge that its investigation turned up these fruitful sources of information. Nor does the government discuss these omissions in its objections to the magistrate's report and recommendations.
These omissions were reckless and material. It appears that the government failed to mention the money orders because doing so would have required the disclosure of Washington as a second confidential informant. As the on-site manager of Ailemen's apartment, Washington was a well-placed lookout for the government. Washington could monitor the comings and goings at Ailemen's apartment and could speak to Ailemen directly without arousing suspicion. Washington also made himself available as a source of information regarding the layout of the apartment and assisted the investigative team in setting up and maintaining video surveillance of Ailemen's front door. This second confidential informant was a great resource in the undercover investigation of Ailemen. Although Washington provided the investigative team with a wealth of information over more than six months of the investigation and was a potential source for more, he was not mentioned or identified in the affidavit submitted to the issuing judge.
The failure to disclose the discovery of the check cashing facility was also reckless. Law enforcement agents learned about the check cashing business after they successfully followed Ailemen to the facility despite Ailemen's use of counter-surveillance driving techniques. The affidavit conspicuously omits this discovery in its discussion of the results of physical surveillance. Worse still, the discussion of physical surveillance in the necessity section misleads the reader to believe that no such evidence was ever found. See Aff at 60 ("In this particular case, surveillance succeeded only in corroborating "Pius'" travel to undercover meetings and heroin purchases, but revealed no evidence of the secret meetings he conducted or the private plans for delivery and distribution of heroin."). The government was at least reckless in omitting any reference to the money orders or check cashing business. This omission was material to the necessity determination. See part V.
In April 1992, Sidney Gladney, now a convicted member of the Ailemen conspiracy, was arrested in Canada on charges of "masterminding a 2 kilo smuggling attempt through Canada." Ex 70. The affidavit disclosed that: (1) the government had probable cause to believe that Gladney was committing narcotics offenses, Aff at 3; (2) Ailemen had made ten phone calls to Gladney at his home and office from April 15 to July 28, 1993, Aff at 52-53; (3) Gladney was identified as an associate of Pius Ailemen in the 1989 investigation, id; and (4) Gladney has a May 1992, arrest for heroin distribution, id at 53. The affidavit, however, does not include crucial facts which link Gladney to Ailemen and which make clear that the government should have learned more about the Canadian investigation before submitting an application for a wiretap. AUSA Vadas prosecuted both the 1989 and 1992-93 investigations of Ailemen, so he knew that Gladney was a suspect in the earlier investigation and thus had reason to know, or at least suspect, a connection when Gladney's name resurfaced several times in 1992-93. AUSA Vadas was familiar with Ailemen's modus operandi of using female couriers to transport heroin across international borders and he knew that Gladney "had been stopped I believe at Toronto airport with two female couriers body-carrying heroin into Canada." TR 6-1302:21-23. In light of these known similarities between Ailemen's operation and Gladney's Canadian arrest,
it was reckless for the government not to have disclosed in the affidavit that it failed to explore fully the details of Gladney's illegal activities in Canada.
The government contends that the Canadian investigation was immaterial, and characterizes it as a "dead end," because neither of the female couriers arrested in Canada knew about Ailemen's source of supply and "Gladney never cooperated with the Canadian authorities." Obj at 87-88. The government, however, could not have known at the time the issuing judge issued the warrant that Gladney would be uncooperative. A frequently used law enforcement tactic in drug cases is to encourage co-conspirators to "roll-over" on each other under threat of criminal prosecution and in exchange for sentencing consideration. The issuing judge would have insisted that the government explore whether this traditional law enforcement tactic held any promise in this case if he had known that a man closely linked to the Ailemen organization had been arrested for smuggling heroin through Canada using Ailemen's modus operandi and was available to Canadian authorities.
Having considered which misstatements and omissions were relevant to the issuing court's necessity determination, the reviewing court must consider for itself whether the corrected affidavit demonstrates the requisite need for a wiretap. The court may begin with "the specific circumstances that render normal investigative techniques particularly ineffective." Ippolito, 774 F.2d at 1486.
In the section of the wiretap labeled "Need for Interception of Wire Communications; Exhaustion of Alternative Investigative Techniques," the affidavit identifies three types of information that the government could not obtain through traditional means: (1) the sources of Ailemen's heroin supply, Aff at 58 and 59; (2) the identities of co-conspirators and aiders and abettors, id at 57 and 62; and (3) the financial structure of the organization, see id at 58. At the conclusion of the section, the affidavit includes the following boilerplate language:
For the reasons set out above, it is my opinion that normal investigative procedures available to law enforcement in the investigation of narcotics violators have been tried and have not been fully successful, are not reasonably likely to succeed if tried, or are too dangerous. It is my belief that the only reasonable way to develop the necessary evidence to discover and prosecute the persons involved in the above-described organization, to identify their locations and methods of operation, their sources of supply, and their financiers, managers, and supervisors, is to commence intercepting wire communications occurring to and from the cellular telephone number * * *. Normal investigative procedures have not and likely cannot succeed in establishing the identities of the co-conspirators and aiders and abettors of Pius Ailemen (other than as set forth herein), their places of operation for their importation and transportation of controlled substances throughout the various states, and their times, places, schemes, and methods for importation, selling, buying, possessing, concealing, delivering, distributing, or paying for controlled substances.
Id at 64-65. Such generic language is far from specific about the inability of traditional methods to uncover specific information. The Ninth Circuit explicitly prohibited such "sidestepping" of the necessity requirement with general allegations about "drug conspiracies." Ippolito, 774 F.2d at 1486. In any event, the court finds that the three main categories of information, as well as the smaller details, sought by the wiretap could have been discovered by traditional means.
Once the omissions regarding agent Estelle's investigation and the Canadian investigation of Sidney Gladney are inserted, there was no need for the wiretap to identify the sources of Ailemen's heroin supply. This was not a case in which the undercover agent aroused suspicion that he was a police officer, cf United States v Blanco, 1994 U.S. Dist. LEXIS 21331, 1994 WL 695396, at *6 (ND Cal Dec 8, 1994); nor a case where a prolonged investigation proved unable to gain the defendant's complete trust, cf United States v Spagnuolo, 549 F.2d 705 (9th Cir 1977) (nine month undercover operation unable to gain target's trust); United States v Commito, 918 F.2d 95 (9th Cir 1990) (ten month investigation). Instead, after only two months of continuous contact, agent Estelle was invited to work with Ailemen in a couriering operation and Ailemen admitted that he no longer thought Estelle was an undercover agent.
For instance, Ailemen suggested the possibility that Estelle travel with him to New York to meet with Ailemen's suppliers. Although such undercover operation would have required members of the investigative team to leave its home turf, the trip almost certainly would have revealed the New York sources of Ailemen's drug supply.
Nor was such undercover work likely to be "too dangerous," as was suggested by agent Estelle three years after the investigation. The government knew that the Ailemen organization was not violent and that its members did not carry weapons. See Report and Recommendation at 78-79; TR 1-196:14-20; TR 2-283:14-19; TR 5-1073:9-14. Any potential danger could have been alleviated by the use of federal agents in New York who could even out the "home court advantage." The fact that federal agents in New York were unwilling to assist their Bay Area counterparts cannot create the necessity required for a wiretap. Had the affidavit candidly revealed the up side of agent Estelle's investigation, the court would have found that resort to a wiretap to learn the sources of Ailemen's supply was unnecessary. Cf United States v Simpson, 813 F.2d 1462 (9th Cir 1987).
This determination is buttressed by the information available with respect to the Canadian investigation of Sidney Gladney. In that investigation, Canadian agents identified two-Pakistani sources of multi-kilo quantities of heroin who were doing business with Pius Ailemen in April 1992. Report and Recommendation at 126. With the assistance of Canadian authorities, the government could have made an effort to determine if Sidney Gladney would reveal any details of Ailemen's organization. A wiretap was not necessary until after the government had pursued these leads.
The affidavit also omits the names of seven persons whom the government knew, or should have known, were participants in both the 1989 and 1992-93 Ailemen conspiracies. This means that at the time the government filed its application for a wiretap, it knew the names of thirteen persons whom it believed were linked to Ailemen. To learn the names and roles of the other co-conspirators, the investigators could have installed pen registers on the phones of at least some of these suspects, put covers on their mail, surveilled them or explored their financial transactions. Before the government took these conventional steps, there was no need for a wiretap to identify Ailemen's co-conspirators.
The government also failed to follow leads regarding the financial structure of Ailemen's organization. Ailemen paid his monthly rent by money orders which should have been traced to their origin. In addition, the government should have investigated the check cashing business, which it believed to be a money laundering facility, to obtain further information about the flow of Ailemen's drug proceeds. A probe into the money orders and check cashing facility, neither of which was revealed in the affidavit, could have uncovered a wealth of information regarding the financial structure of Ailemen's organization. In sum, the specific facts withheld from the issuing judge about this particular investigation reveal that traditional techniques were not exhausted or too dangerous and could have led the investigators to the details they sought by installation of the wiretap.
Due to the large number of misrepresentations and the deceptive conduct of the government throughout the wiretap application and review process, the suppression motion now before the court is not amenable to a piecemeal analysis. And the magistrate did not take such an approach. Instead, the magistrate viewed the misrepresentations in their totality and in light of his determinations about the credibility of the government's witnesses. The magistrate's approach was on target. Only by isolating the numerous misrepresentations contained in the affidavit and considering each one alone and separate from the others is the government able to convince itself that its conduct does not warrant suppression. But when the misrepresentations in the affidavit are viewed together and in the context of the government's overall effort to obtain and preserve its wiretap, it becomes evident that the government agents engaged in a deliberate attempt to mislead the court and subvert the purposes of 18 USC § 2518.
By enacting the necessity requirement of section 2518(1)(c), Congress sought to limit the use of wiretaps to situations in which traditional investigative techniques have been tried but found unlikely to succeed. See Legislative History of Omnibus Crime Control and Safe Streets Act of 1968, 1968 US Code Cong and Admin News 2112, 2190-91. In this case, the government launched a successful investigation that uncovered several promising investigative leads. Rather than pursuing these leads with traditional methods, the government sought a wiretap.
To obtain judicial authorization for the wiretap, the government could not reveal the full potential of its traditional investigation. The affidavit misstated several facts; it omitted and buried others. Indeed, the magistrate identified more than seventeen such misrepresentations, almost all of which were concentrated in the nine pages of the affidavit devoted to necessity.
Not coincidentally, the necessity section was laden with boilerplate language and a one-sided account of the failures of the investigation. The affidavit does not at the outset describe the specific goals of the investigation and then explain why traditional investigative methods are unlikely to achieve those goals. Instead, the necessity section concludes with a laundry list of sought-after information and borrows language from section 2518(1)(c) to the effect that "it is my opinion that normal investigative procedures available to law enforcement in the investigation of narcotics violators have been tried and have not been fully successful, are not reasonably likely to succeed if tried, or are too dangerous." Aff at 64-65. The generic quality of the necessity section coupled with its one-sided account of the defects in the ongoing investigation effectively misled the issuing judge about the promise of traditional investigative methods.
The court is therefore left with a decision about how to interpret the government's behavior. Under other circumstances, the misleading character of the necessity section might be chalked up to carelessness or neglect on the part of the affiant. If the affiant simply omitted details and used boilerplate language in a hasty attempt to conserve time due to some exigent circumstance, suppression might not be appropriate. The conduct of the affiant at the evidentiary hearing before the magistrate, however, suggests a more disturbing endeavor.
During the seven-day evidentiary hearing conducted in December, the magistrate had an opportunity to observe the demeanor of the law enforcement agents and to assess their credibility. The magistrate observed that "[affiant-agent Silano] sometimes openly looked to government counsel before offering an answer, apparently either hoping for an objection or looking for a clue about how to proceed. * * * Agent Silano's testimony was marked too little by forthrightness and too much by an unbecoming concern about the legal significance of answers to questions." Id. The court should defer to the credibility determinations of the magistrate unless presented with evidence or reason for a new evidentiary hearing. See Raddatz, 447 U.S. at 681 n.7. The government has presented no evidence or reason to disturb the magistrate's findings in this regard. Indeed, at the hearing on this matter, the government did not contend that an evidentiary hearing was necessary.
When the deceptive character of the affidavit is considered in light of the agent's conduct at the evidentiary hearing, a pattern of behavior intended to obtain and protect the wiretap emerges and shows that the government acted without respect for the necessity requirement of § 2518(1)(c). The pre-wiretap investigation in this case uncovered promising leads that would have obviated the necessity for a wiretap. The government claimed in the affidavit that normal investigative efforts were unlikely to reveal the sources of Ailemen's heroin supply; in fact, Canadian authorities had already discovered two Pakistani sources and agent Estelle had the possibility of meeting others in New York. The government claimed that normal investigative efforts were unlikely to reveal the identities and roles of Ailemen's co-conspirators; the investigative team had already identified seven persons whose names had surfaced in connection with both Ailemen investigations and whom the government suspected were Ailemen's agents. The government claimed that normal investigative efforts were unlikely to reveal the financial structure of Ailemen's organization; it did not bother to research what it knew were obvious money laundering techniques.
Aware that full disclosure of these leads to the issuing judge would deprive the government of its wiretap, the affiant either omitted the leads or concealed them under a mass of unnecessary detail in the fact section and a gloomy portrayal of the investigation in the necessity section. When called to account for his actions by the magistrate, the affiant demonstrated what the magistrate found was an effort to conceal the truth. Deceptive behavior by government agents to mislead the issuing judge subverts the purposes of section 2518(1)(c). Under these circumstances, the court has no alternative but to suppress the unlawfully obtained evidence. See 18 USC § 2518(10)(a); see also Legislative History of Omnibus Crime Control and Safe Streets Act of 1968, 1968 US Code Cong and Admin News 2112, 2160 ("To bring criminal sanction into play, it is necessary to develop legally admissible evidence. Due process requires no less.").
For the foregoing reasons, the court ADOPTS the magistrate's recommendation that the court GRANT defendants' joint motion to suppress evidence obtained by electronic surveillance.
IT IS SO ORDERED.
VAUGHN R. WALKER
United States District Judge